[2017] KEELC 251 (KLR)
The court found that the proposed amendment to the plaint, which primarily involved substituting the Chief Land Registrar for the Commissioner of Lands, did not materially affect the previous pleadings or introduce any prejudice to the defendants. The court exercised its discretion under Order 8 of the Civil...
Source-derived case information.
- Citation
- [2017] KEELC 251 (KLR)
- Parties
- Plaintiff: Miriam Susan Cherotich Boskwony (suing as the Administrator of the Estate of Charles Boskwony); Defendant: Philip Kipkoech Biwott; Defendant: Philip Mangare Matoke; Defendant: Kennedy Nyabuti Ogeto; Defendant: Honourable Attorney General; Defendant: Chief Land Registrar; Defendant: District Lands Registrar, Nakuru
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 210 of 2012
- Procedural Posture
- Miscellaneous Application / Application for Leave to Amend Plaint
- Outcome
- application allowed
- Judges
- MA Silau
- Legal Topics
- Amendment of Pleadings, Fraudulent Land Transfer, Title Cancellation, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Miriam Susan Cherotich Boskwony (suing as the Administrator of the Estate of Charles Boskwony)
Plaintiff
Philip Kipkoech Biwott
Defendant
Philip Mangare Matoke
Defendant
Kennedy Nyabuti Ogeto
Defendant
Honourable Attorney General
Defendant
Chief Land Registrar
Defendant
District Lands Registrar, Nakuru
Defendant
Procedural Posture
Miscellaneous Application / Application for Leave to Amend Plaint
Legal Issues
- 1 Whether the plaintiff should be granted leave to further amend the plaint.
- 2 Whether the proposed amendment would prejudice the defendants.
Ratio Decidendi
The court found that the proposed amendment to the plaint, which primarily involved substituting the Chief Land Registrar for the Commissioner of Lands, did not materially affect the previous pleadings or introduce any prejudice to the defendants. The court exercised its discretion under Order 8 of the Civil Procedure Rules to allow the amendment, emphasizing that amendments should be permitted where they facilitate the determination of the real issues in controversy and do not cause injustice to the other parties. The application was therefore allowed, and the plaintiff was granted leave to file and serve the amended plaint within 14 days.
Court Disposition
application allowed
Orders
- Leave is granted to the plaintiff to amend the plaint in line with the draft amended plaint annexed to the application.
- The amended plaint to be filed and served within 14 days from the date of the ruling.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT NAKURU
ELC NO.210 OF 2012
MIRIAM SUSAN CHEROTICH BOSKWONY(suing as the Administrator
ofthe Estate of Charles Boskwony)................................................PLAINTIFF
VERSUS
PHILIP KIPKOECH BIWOTT & 5 OTHERS......................DEFENDANTS
RULING
(Application for amendment of plaint; application allowed)
1. The application before me is that dated 27 September 2017 filed by the plaintiff pursuant inter alia to the provisions of Order 8 Rule 3. It is an application seeking leave to amend the plaint.
2. The original plaint was filed on 14 August 2009, vide which the plaintiff, suing as administrator of the estate of the late Charles Boskwony, sued one Kennedy Nyabuti Ogeto, over the land parcel Nakuru Municipality Block 23/50 (hereinafter 'the suit property'). The plaintiff averred that the late Boskwony, in the year 1993, acquired title to the suit property. She pleaded that on 11 August 2009, she carried out an official search and discovered that the title to the suit property is registered in the name of Mr. Ogeto, who had become registered as proprietor on 7 August 2002. It is the plaintiff's case that she has never sold the land to Mr. Ogeto and she has pleaded that he must have obtained title by way of fraud. In the suit, she inter alia asked for an order of cancellation of the title of Mr. Ogeto.
3. Mr. Ogeto filed a defence on 27 November 2009, vide which he pleaded that he never purchased the suit property from Mr. Boskwony, but that he bought it from one Philip Mangare Matoke, who had in turn purchased the property from one Philip Kipkoech Biwott, who had purchased the suit property from Mr. Boskwony on 27 January 1997. He refuted the allegation that he had acquired title by way of fraud.
4. On 28 February 2013, the plaintiff filed an application for leave to amend the plaint to include Philip Mangare Matoke, Philip Kipkoech Biwott, the Honourable Attorney General, the Commissioner of Lands, and the District Lands Registrar, Nakuru, as additional defendants. That application was allowed by consent and an amended plaint was filed on 22 March 2013.
5. Through this application, the plaintiff wishes to further amend the plaint.
6. I have looked at the draft amended plaint, and save for substituting the Chief Land Registrar, for the Commissioner of Lands, I have not really seen much that goes to affect the previous pleadings. I also see no prejudice that is going to be suffered by the defendants if I am to allow the amendment.
7. I therefore give leave to the applicant to amend her plaint in line with the draft amended plaint that was annexed to this application. The amended plaint to be filed and served within 14 days from today.
8. There will be no orders as to costs.
9. It is so ordered.
Dated, signed and delivered in open court at Nakuru this 15th day of November 2017.
MUNYAO SILA
JUDGE
ENVIRONMENT & LAND COURT
AT NAKURU
In presence of : -
Mr. Magata for the 3rd defendant/respondent.
No appearance on the part of M/s Gordon Ogola & Kipkoech Advocates, for the plaintiff/applicant.
No appearance on the part of the 1st, 2nd 4th,5th and 6th defendants/respondents.
Court Assistant: Carlton Toroitich.
MUNYAO SILA
JUDGE
ENVIRONMENT & LAND COURT
AT NAKURU